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VOL. VII DECEMBER, 1897 No. 3 


The complaints which the Spanish Ministry is said to have 
made to our government, of its laxness in preventing filibuster- 
ing expeditions, have called out from the Secretary of the Navy 
an interesting rejoinder. The statement of Mr. Long attempts 
to show on the part of the United States a diligence in preserv- 
ing its neutrality, that is not only "due" but even unusual under 
the circumstances. This correspondence is not yet published. 
The mere fact of its existence and probable tenor, is known. 
We cannot scrutinize the assertions of fact and law and pre- 
cedent therein contained. Nevertheless, perhaps we may use 
the incident to advantage as a peg upon which to hang two 
inquiries, the one relating to fact, the other to law; the one 
recalling a bitter national controversy, long since settled ; the 
other concerning the duties of a State in view of an insurrection 
against a friendly power, an insurrection which cannot well be 
recognized as belligerent. 

What a faint and far-away memory that phrase "due dili- 
gence" suggests! And yet in the Alabama Claims Arbitration, 
a quarter century ago, national responsibility and millions of 
dollars in damages, rested upon its interpretation. 

The military engines which the Southern Confederacy bought 
in neutral England prolonged the war, destroyed or drove to 
other flags the commerce of the North, and gave rise to the 
most serious complaints. Just so to-day, those military supplies 
which Cuba buys from the manufacturers of the United States, 
are prolonging the insurrection, may make independence possi- 
ble, and do much to disturb our friendly relations with Spain. 
They likewise may serve as a basis for claims for damages, in 
no very distant future. There is an apparent parallelism be- 
tween the two cases. Is it a real one? 


The salient features of our relations with neutral powers dur- 
ing the Civil War, were these: the recognition of Southern 
belligerency by the States whose interests were affected, which 
thereby declared their neutrality ; the application of the rules of 
maritime capture to them, by both sides in the war thus recog- 
nized ; the sale of military supplies to the Confederates by neu- 
tral merchants, the onus of preventing their delivery resting 
upon the shoulders of the Northern government; finally, the 
despatch of armed expeditions from British soil, coupled with 
their illegal armament and enlistment of men, in British colonial 
ports, with great damage to American commerce resulting. 
There was an European sympathy for the Southern cause also, 
which was galling to the North, but it is the unneutral act, not 
the unneighborly sentiment, that international law takes 
cognizance of. 

Turn now to our relations with Cuba. 

As the Cuban ports of importance are all in Spanish hands, 
our shipping interests have not been so affected as to make the 
recognition of Cuban belligerency necessary. Therefore, there 
has been no blockade, no right to capture contraband on the 
high seas, no right of search of American ships except within 
Spanish jurisdiction. As in Great Britain in our Civil War, 
there has been free sale of military supplies in our markets to 
the Cubans, but with the assumption that the burden of pre- 
venting them from reaching their destination rested upon Spain ; 
and lastly, armed expeditions, that is, the combination of muni- 
tions of war with men enlisted to use them, have been checked 
and in large measure prevented by our Government, at great 
cost and with much trouble, by many arrests, several trials and 
a few convictions, so that it can honestly say, as Secretary Long 
does say, that it has exercised diligence in this regard. 

American sympathy for the Cuban cause exists. It is natu- 
ral, even inevitable. It is galling to Spain. But we say again 
that expressions of sympathy are not within the cognizance of 
the law. 

Reviewing the two cases, we see that they are not parallel, 
but in strong contrast. 

The one was war, with neutral duties and belligerent rights. 
The other is an insurrection, involving no neutral obligations, 
strictly speaking, and no belligerent rights. The one put the 
duty of preventing contraband articles from reaching their des- 
tination where it belonged. In the other Spain appears to shirk 
this duty ; to try and place it upon the wrong shoulders. Negli- 


gence in the Alabama, Florida and Shenandoah cases, made 
Great Britain liable for the damage they caused, while no such 
scandal in connection with Cuba can be brought home to the 
United States. Its seaboard is long and intricate, the Cuban 
coast near, absolute prevention of hostile expeditions well- 
nigh impossible. But by the use of both navy and revenue 
service the coast has been so efficiently policed as to make the 
despatching of such expeditions very hazardous and very uncer- 
tain. Due diligence has been observed. Can more be de- 

And now for the second inquiry. 

What is the law to govern a State in its relations to a mere 
insurrection in a friendly country? 

Is a State's own statutory law the sum and measure of its 
duty in the case? 

How far does the character of lawful commerce attach to 
trade with the insurgents in military supplies? 

Such questions as these have forced themselves upon both 
executive and judicial departments in the United States within 
the past three years. But there must naturally be a difference in 
their point of view. The executive is guided by the general 
principles of international law, and by its conviction of national 
policy; while the courts, though also applying international 
law, must be specifically bound to employ and interpret the 
statutes enacted for the enforcement of that law. Violation of 
the rights of another power by the executive calls for redress. 
So, too, insufficiency of the statute, as interpreted, founds a 
valid claim for damages. But an unpalatable interpretation of 
a statute is not a ground for complaint, unless bad faith can be 
proven. Where an insurrection breaks out in another state it is 
to be remarked that one's own political relations with that state 
are necessarily affected, for it involves the commerce and the 
property rights of our citizens. If of a character to warrant it, 
the insurrection will be recognized as belligerent. We are pre- 
supposing, however, that for one reason or another this course is 
inadmissible. There results no recognized war. There can, 
therefore, be no neutrality (since neutrality implies war), nor 
any neutral duties. We have so-called neutrality acts, which 
operate without war, it is true, but the "neutrality" is here 
merely a convenient name, and not a proof of status. The same 
thing in England is called a Foreign Enlistment Act. 

But though there may be no neutral duties and rights, tech- 
nically speaking, there are nevertheless the duties which every 


state owes to every other ; there are the rights of commercial 
freedom which every state enjoys, and there is the right of self- 
defense, the duty of maintaining its own integrity, which the 
insurgents sovereign possesses. 

These fundamental rights do not depend for their operation 
upon any formal recognition of belligerency. Nor can I see 
that they are called into being or changed in any way, by the 
new-fangled recognition of insurgency — a phrase ascribed to the 
late Dr. Wharton. When an internal disturbance in a friendly 
state is serious enough to affect another state's interests, the 
executive consciousness of that fact finds expression. In our own 
case, the form of expression will usually be a reference in some 
message of the President to give notice of the facts and warn us 
to obey our own statutes. This is what is meant by the term, 
recognition of insurgency. 

Now as to the private trade in war material. It is certain 
that such trade with an insurgent body is at least as lawful and 
unrestricted as with a recognized belligerent. The usage in 
the latter case is unqestioned. Private trade in contraband is 
permitted. Even where carrying contraband is forbidden by 
executive order, as is sometimes done, 1 this simply means, in 
actual practice, that the trade is liable to the penalty of confisca- 
tion, if the offender is caught by the injured belligerent. The 
neutral is never held responsible for the traffic in contraband so 
long as it is purely a commercial transaction. Accordingly, a 
body of law has grown up to govern such cases. States define 
contraband by treaty. Such goods may be seized unless the 
treaty substitutes preemption for confiscation. They may be 
seized on the high sea even, if their hostile destination is clear. 
In certain cases the ship is liable also. But the burden of pre- 
vention is not saddled upon the neutral. The law and usage are 
the resultant of two principles, the freedom of neutral trade, 
and the belligerents' right of self-defense. 

In the case of insurgency rather than belligerency, the only 
question is whether the freedom of trade in war material is not 
enlarged, whether the right of seizure is not restricted to the 
coast sea of the insurgents sovereign. In the case of an armed 
expedition like the Virginius there is authority and reason for 
believing that search and seizure on the high seas are war- 
ranted on the ground of self-defense. A similar claim to pre- 
vent the trade in war material would probably not be submitted 

1 E. g., by both British and Spanish proclamations of neutrality at the 
outset of our Civil War. 


to. However, for our present purposes, it is not necessary to 
discuss this point. It is enough to emphasize the general law, 
that no government can be held accountable for its citizens' 
traffic in military supplies, not furnished to a visiting man-of- 
war, nor in the hands of an expeditionary force. Its duty is 
fulfilled when its subjects are warned of the risk of loss which 
they incur by engaging in it. 

The distinction already referred to, between contraband 
goods which are mere commodities, and the same goods it may 
be, with an organized body of men to use them, is a perfectly 
reasonable one. It is the distinction between trade and an 
armed expedition — between peace and war. 

An insurrection breaks out in one of two states which are at 
peace. The other is bound to prevent all persons within its 
jurisdiction from assisting to .wage war against its friend. 
Where a ship is armed or men enlisted and an expedition set on 
foot, with intent to assist the insurgent cause, that is waging 
war. If such acts are made possible through the negligence of 
the authorities, through lack of appropriate legislation, or 
through a judicial breakdown involving more than an unpalatable 
interpretation of the law, they are unfriendly and a ground 
for damages. 

This, then, in its simplest terms, is the sum of the rights and 
duties which obtain between the United States and Spain at the 
present time ; to carry on trade with the Cubans even in war 
material, subject to the Spanish right of seizure within their 
own coast sea ; to prevent our soil from being made a base from 
which Cuban sympathizers wage war against Spain. These two 
are the cardinal points, under the general principles of the law 
of nations. 2 Such general principles in a vital matter like this 
should and do find expression and sanction in local legislation, 
and such statutes are interpreted and enforced by the courts. 
Neither insufficiency of the law, nor difficulty in enforcing it, 
will excuse a government. As our diplomatists kept urging 
upon England in the Alabama discussion, "If the law is insuffi- 
cient, amend it ; if sufficient, enforce it. ' ' 

2 The simplicity of the rule may be complicated by actions which involve 
a violation or evasion of our revenue laws. Thus a ship with contraband and 
a commercial crew, may clear for Havana, whereas, her real destination is 
inferred to be some landing place, not a port of entry, on the Cuban coast. In 
this connection the Itata case at San Diego may be recalled, which ship took 
French leave of the authorities, and failed to comply with the port regulations, 
yet the court acquitted her of the charge of violating the neutrality statute. 


Our next inquiry thus relates to the adequacy of our own 
statutes, and to the good faith and effectiveness of their inter- 
pretation and enforcement. 

The statutes applicable to such aid as Cuba has sought, are 
two, Sections 5283 and 5286 of the Revised Statutes of the United 

The first is aimed at "every person who, within the limits of 
the United States, fits out and arms, or attempts to fit out and 
arm, or procures * * * etc. , or is concerned in * * * * 
etc., with the intent that such vessel shall be employed in the 
service of any foreign prince or state, or of any colony, district 
or people, to cruise or commit hostilities against the subjects, 
citizens or property of any foreign prince or state or of any 
colony, district or people, with whom the united States are at 
peace. * * *" 

Here the offense is to be committed by means of a vessel and 
that vessel must be armed. On this ground some prosecutions 
have failed. Another point is, that the vessel is to be "employed 
in the service of any foreign prince or state, or of any colony, 
district or people." Do the Cuban insurgents ^correspond to this 
latter description? 

Mr. Justice Brown, in the Carondelet (37 Fed. Rep. 799), 
seems to hold to the contrary, and Judge Locke, in the Three 
Friends, 6 last year, took the same view. Justice Brown said: 
"A vessel could hardly be said to enter the service 'of a foreign 
prince or state or of a colony, district or people' unless our gov- 
ernment had recognized Hippolyte's faction as at least consti- 
tuting a belligerent," but the decision turned on another point. 
The contrary view was taken by Mr. Wharton and Attorney- 
General Hoar, who believed this statute applicable to, and in- 
tended for just such an insurgent body as the Cubans form. In 
contrast to this indefiniteness in the American statute, compare 
the wording of the British Foreign Enlistment Act. This for- 
bids similar aid given to "any foreign prince, colony, province, 
a part of any province or people, or any person or persons ex- 
ercising or assuming to exercise the power of government in or 
over any foreign country, colony, province, or part of any 
province or people. " In the English case, The Salvador, the 
lower court held like Judge Locke, that the statute did not apply 
to unrecognized insurgents in Cuba. But this decision was 
overruled by the Judicial Committee of the Privy Council ( The 

3 See Yale Law Journal, Vol. VI., No. 5, p. 283. 


Salvador, L. R., 3 P. C. 218). In view of the judicial interpre- 
tation of our statute, it would seem that it is inferior in compre- 
hensiveness to the English Act. But that it is so faulty as to 
ground a claim for damages for unneutral conduct against the 
United States, is very improbable. For it is sufficiently doubt- 
ful, to warrant a trial if not a conviction, to detain the ship 
although it may not forfeit it, and, besides this, Section 5286 is 
comprehensive enough to forbid such an armed expedition as 
would be obnoxious to the general principles of international 
law already laid down. This reads as follows: "Every person 
who, within the territory of the United States, begins or sets on 
foot, or prepares the means for, any military expedition or enter- 
prise, to be carried on from thence, against the territory or 
dominions of any foreign prince or state, or of any colony dis- 
trict or people, with whom the United States are at peace, shall 
be deemed guilty," etc. Plainly, this statute is operative with- 
out any recognition of belligerency and abundantly satisfies 
the requirements of international law which forbid one state to 
permit any hostile expedition to be prepared within its jurisdic- 
tion against another state, its friend. 

This, then, is the answer to the questions which we asked at 
the outset : that trade in military material is lawful to the indi- 
vidual ; that the duty of a state is measured not by its statutes 
but by the requirements of international law; that if those 
statutes, as interpreted by its courts, are insufficient to lay down 
its international duties and prevent their violation, that state is 
liable ; and that in the case of Spain and Cuba our statutes are 
not strikingly faulty, although one could certainly be made 
clearer and more comprehensive. 

This Cuban insurrection, like the one in the seventies, has 

put the United States into a difficult position. Its trade has 

been cut off ; its resources taxed to preserve its neutrality. But 

as several convictions show, and as the records of the navy and 

revenue service testify, it has performed its international duties 

with fidelity, with patience and with success. 

Theodore S. Woohey. 
Yale University, December 1, 1897.